Bray v R

Bray v R - [2018] NSWCCA 301 - NSWCCA 2018 case summary — Zoe

[3]

The offences

There were two victims who will be referred to as "V1" and "V2". The applicant had become their stepfather upon his marriage to their mother in 2002. The offences alleged in the indictment occurred during 2009 when V1 was aged 11 or 12 and V2 was aged 10 or 11. They each gave evidence of sexual assaults that occurred on other occasions as well. The judge said that she was "satisfied beyond reasonable doubt that there was other offending and that these offences for sentence were not committed in isolation". [2]
The offence in Count 1 of the indictment concerned V1. The judge said: "[V1] spoke of the offender entering her bedroom and rubbing her stomach. … She spoke of the first time that the offender tried to move from rubbing her stomach to rubbing underneath her pyjama pants. This is the incident referred to in count 1. She said he slowly moved his hand downwards under the waistband of her pyjama pants. He moved to her lower stomach and her hip. She told him to leave her alone and he said sorry. He moved his hand up, but then went to move it down again. She pushed his hand away, asked him to leave her alone and rolled over. She said the offender continued to enter her bedroom and to do the same thing; it was ongoing for some time. He would regularly put his hand down her pants. Sometimes he would just rub her stomach underneath her top. She said she spoke with her mother about the offender coming into the bedroom and that he 'wouldn't leave us alone'. She did not tell her more about being touched in inappropriate places as she was afraid of her mother." [3]
The offences in Counts 3, 4, 5 and 7 of the indictment concerned V2. The judge said: "The victim [V2] gave evidence of the first incident being in 2009 when the offender entered her bedroom. She was on the top bottom [sic] and he lay naked on top of the sheet. This was not a count on the indictment. Not long after this occasion the offender entered her bedroom and rubbed her stomach under her shirt. She said she did not tell anyone at the time as she was "pretty scared". Once again this was not a count on the indictment. [V2] then gave evidence of count 4, that the offender entered the bedroom, placed his hand on her stomach, placed her hand on his penis and whilst holding her hand moved it back and forth. She said she felt "pretty scared", she did not really know what happened and that she was scared and intimidated by him. The offender was a father figure who had power over her life. She said that this happened on multiple occasions. She then gave evidence of the incident supporting count 3. She said the offender entered her bedroom, placed his hand under her shirt on her stomach, placed her hand on his penis and made her stroke it. The offender then placed his hand on her vagina and rubbed. She did not say anything to anyone as she was pretty scared of him, she did not really know who to tell or even that it was wrong. Regarding count 5 the offender entered her bedroom, placed his [sic - her] hand on his penis and then placed his hand under her underwear. She said she spoke with her mother after this occasion. The fact that the victim says she told her mother is relevant to what she says the offender said after the next occasion. The victim then spoke of the incidents supporting count 7. She said the offender placed her hand on his penis and rubbed her hand on it back and forth and then placed his hand underneath her pants. The offender said to her, "You'll never say anything about this to anyone again, will you?" The victim said sexual incidents occurred quite frequently and they continued for some time. [V2] tried to hang herself on 23 December 2009. She was aged 11. She said she felt hopeless, like she would never be able to get out of the situation." [4]
The jury were unable to agree upon verdicts for the offences in Counts 2, 6 and 8. Count 2 is of no present importance but Counts 6 and 8 involved allegations that the applicant digitally penetrated the victim's vagina as part of the incident that gave rise to Counts 5 and 7 respectively. There was a discussion during the course of submissions on sentence as to how her Honour should approach the task of fact finding in respect of Counts 5 and 7. [5] Counsel asserted that there was some difficulty in reconciling the verdicts but her Honour was of the view it was explained by the jury being cautious about accepting beyond reasonable doubt the victim's evidence of there being penetration.
Her Honour indicated that she would take what she thought might be "an overly restrictive and overly cautious approach" and not have regard to any conduct for which there was no verdict. Counsel appeared content with her taking that course. [6] That approach is evident in the above extract from the sentencing remarks. I mention this because during the course of the hearing of the application, senior counsel for the applicant contended that the facts found in relation to Counts 5 and 7 should have been limited to the victim being forced to touch the applicant's penis. In my view, it was open to the judge to proceed upon the basis of the facts described in the extract above.
The judge made the following observations and finding concerning the objective seriousness of the offences: "The victim [V1] was aged 11 or 12 at the time of the offence. The victim [V2] was aged 10 or 11. The offence provision refers to a child under 16. I take into account the age of each victim as against the range and the upper limit of the offence. I am mindful that I am to have regard to the age of the victim in considering the offence, particularly where it has been said that the younger the victim within a stipulated age range the more serious the offence: Shannon v R [2006] NSWCCA 39. Each victim was under the authority of the offender. This is a significant aggravating feature. The offences happened in the bedroom of each victim and whilst each was in bed. It is aggravating that not only was the safety of the home invaded, what should have been the refuge of the bedroom was also invaded. This was the one place where each victim should have had an entitlement to safety and protection. Most, if not all, offences occurred whilst the other victim was in the bedroom in the other bed of the bunks. There is no suggestion that the other one saw the offending and there is no evidence that their presence would have increased the impact upon the victim. The offences involved direct touching of the skin of the genitals or, in [V1's], case proximate to her genitals. An indecent assault covers a broad range of touching. Touching directly to the skin and either to the genital region or forced touching of the offender's penis is at the upper end of the range. The offences were not committed in isolation. I do not use this to aggravate the assessment of any individual offence. I appreciate that there is a minor age difference between each of the victims. I find that each offence falls just above the mid-range of objective seriousness for the type of offence." [7]
The judge referred to a victim impact statement provided by V2 and then said the following in relation to both victims: "The impact upon [V2] was profound. She attempted suicide as an 11 year old. The evidence in the trial was that after she complained to her mother and received no support, she tried to hang herself. I find that this amounts to substantial harm. I observed that she required the support of a therapy dog whilst giving her evidence. [V1] appeared physically and emotionally vulnerable however I do not find that the evidence available supports that the harm occasioned was substantial. I am mindful that the offences upon which the offender was found guilty do not represent the totality of this offending upon either victim. The impact upon each cannot be apportioned between those for sentence and the wider conduct and I only take into account the harm occasioned by the offences for sentence." [8]

[4]

Other aspects of the sentencing remarks

After describing the offending and its seriousness the judge proceeded to discuss various other matters relevant to the assessment of sentence. They may be dealt with in a summary way having regard to the nature of the issues raised on the application.
The judge referred to the applicant having tendered a report by a psychologist, Mr Jason Borkowski. Her Honour noted that there was no suggestion of any mental health issues other than those arising from the charges and subsequent incarceration. There were signs of anxiety disorder and a suggested presentation of an adjustment disorder but nothing that would lessen the applicant's moral culpability.
The applicant came from a stable family background. He had five children from three relationships, some of whom were supportive of him while others were supportive of the two victims.
The applicant had been in employment throughout his adult years, primarily as a forklift mechanic.
The applicant was noted to have gout and osteoarthritis but the judge did not find that custody would be any more onerous for him as a result.
The judge referred to some evidence about when the applicant would have become aware of the victims complaining about his misconduct. She accepted that he was not made aware of the matters being reported to police until 2015 and that "he would have experienced a modest component of uncertainty during this period of delay". There was also no suggestion of further offending after 2009 which the judge said "may support a finding of rehabilitation during the years between offending and sentence".
Her Honour: ● Found and expressly took into account that the applicant was a person of prior good character. She rejected a submission by the Crown that s 21A(5) of the Crimes (Sentencing Procedure) Act applied. ● Noted that the offender maintained his innocence and was not entitled to any finding of remorse. ● Found the applicant's prospects of rehabilitation and likelihood of not reoffending difficult to gauge. Nevertheless, she concluded that the prospects of rehabilitation were reasonable. ● Held that specific deterrence "must operate, albeit not at an elevated level", given the absence of an understanding of the cause of the offending. ● Considered factors that may bear upon the applicant's conditions of custody but declined to find that they would be more onerous than is usually the case. ● Referred to the general principle that sexual offending against children required general deterrence to play a significant role in sentencing, citing EG v R [2015] NSWCCA 21 at [42].
There is substantial notional concurrency of the indicative sentences. It is worth quoting what her Honour said about this: "The principle of totality requires the Court to consider whether an aggregation of sentences imposed is a "just and appropriate measure of the total criminality involved". The imposition of an entirely concurrent term would produce an outcome which is unjust and inappropriate. It cannot be determined that the sentence for any one offence would encapsulate the criminality for the other offences. These were separate occasions of serious offending upon two separate victims. A case such as the present involves an especially important factor relevant to general deterrence which must be taken into account in determining whether concurrence to any degree and if so what degree will be consistent with the imposition of a sufficient penalty overall, namely the sentence must reflect significant general deterrence."
A final matter to note about the sentence judgment is that her Honour made a finding that there were special circumstances that justified a reduction of the non-parole component of the sentence. She said: "It was submitted that I make a finding of special circumstances based upon delay, this being the offender's first time in custody and that the offender will require additional assistance to reintegrate into the community upon release. I make a finding of special circumstances relying upon partial notional accumulation of sentences and to assist him to reintegrate into the community." [9]

[5]

Ground 1 - error in assessment of objective seriousness of the offences

The applicant submitted that insufficient regard was had by the judge to the seriousness of the individual offences; rather, a "global assessment" was made which was manifested in the near uniform sentences indicated for each.
It was submitted there were points of differentiation between the offences. The offence in Count 1 concerning V1 should have been assessed at a significantly lower level of objective seriousness than for the other offences concerning V2 for the following reasons: a) The evidence did not establish that the touching involved skin-to-skin contact or any contact with the victim's genitals. (This is not entirely correct. [10] ) b) The victim was not forced to touch the applicant. c) The victim was older than V2. d) The applicant desisted when V2 protested. (This is not entirely correct either. [11] ) e) There was no finding of "substantial harm" as an aggravating factor pursuant to s 21A(2)(g) of the Crimes (Sentencing Procedure) Act.
It was also submitted that there were significant differences in the conduct between the offences concerning V2. The evidence in relation to Counts 3 and 4 was that the applicant took her hand, placed it on his penis and forced her to stroke it. But in relation to Count 3 he also touched and rubbed her vagina whereas in relation to Count 4 he just touched her stomach. It was submitted that the absence of touching of V2's genitalia meant that Count 4 should have been assessed as less serious.
A similar submission was made in comparing Count 3 with the offences in Counts 5 and 7. According to the judge's findings, Count 5 involved the applicant placing her hand on his penis and then he "placed his hand under her underwear". Count 7 involved the offender placing her hand on his penis and rubbing her hand on it back and forth and then he "placed his hand underneath her pants". It was submitted that the offending in relation to these Counts was less serious than that in Count 3 which involved the applicant also touching her vagina.
It was submitted that her Honour had not adequately dealt with the specific conduct in the individual counts. As a result, she failed to sufficiently assess the objective seriousness of the offences.

[6]

Consideration

The applicant's submissions focus upon an analysis of the physical acts which made out the offences. The character of the assault including the nature and degree of the physical contact involved is of considerable significance when assessing the objective seriousness of indecent assaults against children: see, for example, Corby v R [2010] NSWCCA 146 at [72]. However, that is not the start or the end of the assessment. In this case there were a number of features that were also relevant and applicable to each offence.
The judge accepted that the offences were not committed in isolation. She said that this was not an aggravating matter. It may be assumed that this meant there was an absence of a factor that would have supported a finding that the offences were less serious.
It was an element of the offence that the victim was under the age of 16 years. Each offence was rendered more seriousness because the victim was not just under 16 but was either 10 or 11 (V2) or 11 or 12 (V1). Each offence had the additional aggravating factor that it was committed by a person in a position of authority over the victim. Further, each offence was committed within not only the sanctuary of the victim's home but also within the refuge of their own bedroom.
These features had the combined effect of rendering each offence of significant seriousness no matter the nature of the physical acts. Factoring in the physical acts, they each involved skin to skin contact (as opposed to through clothing). In respect of V1, the offence involved the applicant touching the victim's stomach, "proximate to her genitals", [12] as she lay in her bed, twice trying to move his hand towards her genital region. In respect of V2, the offences each involved the applicant placing her hand on his penis and the applicant touching her including, in the case of Count 3, her vagina.
The judge was correct (with respect) in making the following general observation: "An indecent assault covers a broad range of touching. Touching directly to the skin and either to the genital region or forced touching of the offender's penis is at the upper end of the range." [13] (Emphasis added) See, for example, EJDG v R [2012] NSWCCA 251 at [9]-[10]; [27]-[28])
Despite this observation applying to each of the offences in Counts 3, 4, 5 and 7, her Honour made a finding of "just above the mid-range".
The reasoning disclosed in the judge's sentencing remarks indicates that she had regard to the matters that bore generally upon the assessment of the seriousness of the offences as well as upon the matters that pertained to the individual offences. She specifically noted there was a minor age difference between each of the victims. Having regard to the matters I have summarised above, I see no error in her Honour describing the level of objective seriousness of the offences as she did.
While it might be preferred that a judge will describe his or her assessment of the objective seriousness of an offence with some particularity, it must be accepted that it is not something that can be described with absolute precision. The applicant's submissions suggest that an aggravated indecent assault offence involving the applicant making the victim stroke or rub his penis while he touched the victim might be assessed as appreciably more or less serious according to whether his touching included her vagina. All of the other factors supported a finding that the offence was "just above the mid-range of objective seriousness" regardless of that fact. To suggest that it was erroneous for the judge to not provide (ex tempore judgment or otherwise) a more refined distinction between the seriousness of the offences is, with respect, unrealistic: Rampe v R [2018] NSWCCA 163 at [41]-[42].
It must be remembered as well that the assessment of the gravity of an offence is "classically within the role of the sentencing judge" and that "this Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion". The question is "whether the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour": Mulato v R [2006] NSWCCA 282 at [37]. In the present case, the answer to that question is, in my view, affirmative.
Ground 1 cannot be upheld.

[7]

Ground 2 - error in not giving proper effect to the finding of special circumstances

The parole period for an aggregate sentence cannot exceed one-third of the non-parole period unless there are special circumstances for it being more: Crimes (Sentencing Procedure) Act, s 44(2B). Here the judge found that there were special circumstances in the "partial notional accumulation of sentences and to assist [the applicant] to reintegrate into the community". [14] Instead of a non-parole period of 7 years 6 months against the total term of 10 years there was a non-parole period of 7 years.
The applicant contended that the "prescribed ratio" had "only been varied slightly"; by six months. It was submitted that this was, "not meaningful, nor practical". [15] In oral submissions it was put that the applicant will be released from custody when he is in his early seventies [16] so that this is a matter of some significance. [17]
Reference was made in the written submissions to Dawson v R [2013] NSWCCA 61 and Gumbleton v R [2017] NSWCCA 314 as analogous cases. They are not analogous as they were cases in which the sentencing judges imposed sentences with non-parole components that, through inadvertence or miscalculation, did not reflect their intention in finding special circumstances. The variations in the non-parole periods were only 3 months in the case of Dawson v R and 2¼ months in the case of Gumbleton v R.
Reference was also made in the applicant's written submissions to Chaloner v R [2018] NSWCCA 59 for its endorsement of the finding of error by this Court in Gumbleton v R. But it also includes Basten JA stating (at [10]): "A minor change will not always indicate error; it all depends on the purpose of the finding of special circumstances."
The adjustment made by the sentencing judge in the present case was of 6 months. It was a variation of substance; hardly inadequate for the stated purpose, let alone derisory, like in the cases referred to by the applicant. Nothing was identified in anything said by the learned sentencing judge suggesting that the adjustment was not what she intended.
It is notable as well that the adjustment allowed for a parole period of 3 years which is the maximum period of supervision permissible in the usual case: Crimes (Administration of Sentences) Act 1999 (NSW), s 128C; Crimes (Administration of Sentences) Regulation 1999 (NSW), r 214A. The sentencing judge did not refer to this, but she has a well-respected experience and knowledge of the criminal law so I suspect she was aware of it.
No error is established under this Ground.

[9]

The severity of the indicative sentences

It was submitted that the indicative sentences "are demonstrably outside the expected range for the individual counts" and so the aggregate term imposed must have been erroneously inflated. It was also submitted that "head sentences of above six and a half years far exceed the range of sentence that would be expected for offences 'just above the mid-range'". [18]
The applicant referred to it being open to the sentencing judge to recognise the separate criminality involved in the various offences by notionally partially accumulating the indicative sentences and the applicant acknowledged that there was nevertheless "a fair degree of concurrency". [19] However it was submitted that the benefit to the applicant of this was "illusory" when the "indicative sentences … are excessively high". (This submission must be rejected given what I have said above by reference to JM v R.)
The applicant sought to make good his contention concerning the severity of the indicative sentences by a comparison with Scales v R [2017] NSWCCA 293. However, there is an important aspect of the reasoning in that case which is irreconcilably inconsistent. If regard was had to the outcome, as is usually done, the case would be completely contrary to the applicant's argument. I believe in fairness to him the case should be ignored.
Scales v R was concerned with one of two sentences imposed in the District Court for aggravated indecent assault under s 61M(2). The sentence was obviously manifestly excessive: a starting point of 9 years 4 months reduced by 25% for an early plea of guilty to 7 years for an offence assessed as "slightly below the mid-range of objective seriousness". Lonergan J (with whom Hoeben CJ at CL and Price J agreed) said the following in the course of explaining why the sentence was excessive (at [41]): "A sentence reflective of slightly below the mid-range of objective seriousness should result in something closer to the range of 5 years given the maximum penalty of 10 years. This penalty then needs to be further reduced to take into account the sentencing Judge's stated discount of 25% for the early guilty plea."
A little later however, in discussing the subject of resentencing, her Honour said (at [48]): "The 25% reduction on account of the Applicant's early plea of guilty should remain. Accepting the sentencing Judge's findings relevant to sentence as set out in paragraphs 23 to 32, the sentence proposed for Count 2 is imprisonment for 5 years … with a non-parole period of 3 years …"
The Court ordered that the original sentence be quashed and replaced by one of 5 years.
There was no explanation why an assessment of a proportionate sentence [20] of 5 years before reduction for the plea of guilty (at [41) became an assessment of 5 years after reduction (at [48]). The latter suggests that the Court considered appropriate a starting point for a "slightly below mid-range" offence of 6 years 8 months against a maximum penalty of 10 years. Something appears to have gone awry.

[10]

Aggregate sentence at the uppermost end of recorded sentences

The applicant's written submissions engage in a purported comparison of the aggregate sentence imposed in this case with those which were imposed in other cases as disclosed in statistics maintained by the Judicial Commission of New South Wales. The submissions acknowledge one of the shortcomings of such an exercise: that "offences of indecent assault can cover a wide gamut of behaviours". They also assert that the "sample size for District Court sentences is small", but this may be because some of the statistical tables annexed to the submissions are from the "pre-Muldrock" database whereas the sentencing in the present case was subsequent to that case. But even selecting statistics from the reasonably-sized "post-Muldrock" database, it became dramatically smaller when one isolates cases in which there was no discount because the offender, as here, pleaded not guilty.
Another difficulty with the applicant's attempt to compare his sentence with aggregate sentences imposed in other cases is that there is no way of knowing how many offences and what type of offences were the subject of the aggregate/effective sentence imposed in those cases. For example, there might have been one offence, a few or a great many. The offences might all have been the same as the offence in question, or they might have been only one of those and some, or many, less serious offences.
Previous judgments of this Court have pointed to the care with which comparisons should be made with sentencing statistics because of the need to understand the basis upon which they are compiled. Once again, it is important to take note of the information provided in the "Explaining the Statistics" document [21] to which this Court has referred: Regina v AEM Snr; Regina v KEM; Regina v MM [2002] NSWCCA 58 at [114]; Knight v R [2015] NSWCCA 222 at [3]-[13]; Why v R [2017] NSWCCA 101 at [62]-[64].
In short, the applicant's case under this ground is not assisted by reference to sentencing statistics.

[11]

The indicative sentences and the aggregate sentence are manifestly excessive when compared to past sentences

A table of 12 "comparative sentences" was annexed to the applicant's written submissions. They do not, with respect, support a finding that the sentence in the present case is manifestly excessive. They involve quite a wide range of offending conduct with mixtures of offences, including but not limited to aggravated indecent assault. For example, some of the cases also involve offences of intercourse with a child; others involve offences concerned with child abuse material offences; and some involve further offences being taken into account.
Eight of the cases in the table involved pleas of guilty, three involved pleas of not guilty and one was said to have involved "mixed" pleas. No indication is given as to the extent of any reduction of sentence that was allowed where there were pleas of guilty.
Some of the cases involved sentences for offences against s 61M(2) that are significantly less than in the present case. However, the information is insufficient to indicate a sentencing range that might be pertinent to offences of the type and severity presently under consideration.
One of the cases that involves only offences against s 61M(2) (although offences of producing and possessing child abuse material were taken into account) is Wray v R [2014] NSWCCA 166. It involved seven such offences. The victims were aged 8 and 9. The offender had befriended their families. The indecent assaults, where sufficiently described in the judgment, mostly did not involve skin to skin contact as in the present case and generally were not of the same gravity.
The applicant had a dysfunctional and neglected upbringing. He was aged 66 at the time of sentence and had substantial physical ailments. He had served a substantial term of imprisonment for previous child sexual assault offences and had been diagnosed as a paedophile. The offences were assessed as "serious but not within the middle of the range of objective seriousness". The offender was remorseful but had "very, very poor" rehabilitation prospects. The sentencing judge also found that he posed a danger to the public in the future.
Bearing in mind that a sentence must be proportionate to the objective gravity of the offences (and therefore cannot be longer than that because of past offending or a finding of future dangerousness), [22] it is notable that these offences of lesser seriousness than in the present case yielded an aggregate sentence of 12 years with a non-parole period of 9 years that was not regarded by this Court as manifestly excessive. The indicative sentences for six of the s 61M(2) offences were 5 years (thereby a notional starting point of 6 years 8 months before a 25% reduction for pleas of guilty). The indicative sentence for one of the offences in respect of which the relatively minor produce and possess child abuse material offences were taken into account was 5 years 6 months (thereby a notional starting point of 7 years 4 months). These assessments do not assist the applicant.
Another case in the table involving only s 61M(2) offences is WC v R [2015] NSWCC 52. Quite narrow technical issues were raised on the application to this Court and so it was unnecessary for the judgment to disclose much in the way of factual detail, particularly as to the personal circumstances of the offender. Accordingly, the case is of no assistance.
The last case in the table that involves only sentencing for s 61M(2) offences is GSH v R; R v GSH [2009] NSWCCA 214. There were three offences against the one victim who was aged 9. The offender was a member of her extended family and the offences all occurred one day at a family barbecue. The sentencing followed a trial so there was no discount for the offender having pleaded guilty.
The sentence for two of the offences that were considered to be "towards the lower end of the range of objective gravity" [23] were not regarded by this Court as manifestly inadequate but the sentence for an offence involving touching the child's vagina was. The primary judge imposed a sentence for that count of 5 years 4 months and Latham J said that a sentence of 7 years was warranted at first instance. [24] Because of the "constraint" then limiting this Court's intervention in Crown appeals [25] the sentence was only increased to one of 6 years 6 months.
GSH v R; R v GSH, on the face of it, is inconsistent with present applicant's claim that the indicative sentences assessed in his case are excessive. Caution is required, however, given the sentences were assessed in the era prior to the decision of the High Court of Australia in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39. At best for the applicant, it is a case that should be omitted from consideration.

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